The Question That Won't Die

The strange death of U.S. Customs inspector David Berkofsky almost sounds like a riddle, the kind of thing crime writers or medical examiners would bandy about: Two men with a history of personal animosity walk into a room. No one else is present or within earshot. Only one man comes out of the room alive. How do you figure out what happened?

When it comes down to one person's unverifiable account of an event, as in the Berkofsky case, all police detectives can do is examine forensic evidence and commit themselves to a thorough reconstruction of both men's lives and the events leading up to the death. While there was an examination of forensic evidence following Berkofsky's death, the lead detective apparently needed less than twelve hours of investigation to reach a conclusion. He told Berkofsky's widow that her husband had killed himself.

Once a death is assigned a classification -- in this case, classified as a suicide -- it becomes difficult to reopen an investigation. But five years after Miami-Dade Police closed the case, Berkofsky's family and friends remain perplexed and troubled; they still wonder what really happened in the room he never left.

"It all comes down to evidence," says Ed Griffith, spokesman for the Miami-Dade State Attorney's Office. "In a case like that, maybe if someone came forward and said, 'Hey, I was standing at the doorway, I overheard everything,' then maybe you could get it reopened."

If this particular case were to be reopened, the story would begin at 7:05 a.m. on January 7, 1999. That's when David Berkofsky walked into his office at the Miami Free Zone on NW 107th Avenue just north of Miami International Mall. Berkofsky, a senior customs inspector, was the resident den mother, a kindly, doughy 48-year-old who regularly arrived early to brew coffee for the five or six inspectors who worked in the office on any given day. Sometimes he brought bagels for everyone.

Lately the familial atmosphere in the small office, where inspectors oversee the flow of duty-free products passing through Miami on their way to and from other countries, had been strained by a feud centered on inspector José Marrero-Colon and Ruth Casal, a senior inspector. Casal took a relaxed approach to office etiquette, and Marrero-Colon, though her junior in rank, had been complaining bitterly about her performance. At a January 6 office meeting, Berkofsky, acting as Casal's protector, told Marrero-Colon to lay off and stop behaving as if he were a supervisor. Insults were traded and Marrero-Colon told Berkofsky he didn't work hard enough to merit his own salary. The normally placid Berkofsky became incensed, cursing at Marrero-Colon. But soon he calmed down and resolved to end the animosity. After the meeting he spoke with a co-worker about his intention to make peace with Marrero-Colon.

A retired U.S. Army master sergeant, Marrero-Colon always arrived at the office promptly at 6:00 a.m. In fact he put in so many hours on the job that at one point he received an official reprimand for working overtime without pay. He was there the morning after the confrontational meeting when Berkofsky greeted him in the coffee room and began to address the disagreement. Marrero-Colon suggested they go somewhere private. The two men walked into the office's conference room at about 7:15 a.m.

By 7:30 David Berkofsky was dead of a gunshot wound.

The weapon used was his own gun, which he hadn't worn to work in the office for more than two years. That morning he'd mentioned to his wife that he might wear the weapon because he was intimidated by Marrero-Colon, who always wore his sidearm.

There were no fingerprints on the gun.

Inchoate ideas like "getting past" and "working through" may be the stock phrases that sell self-help books and fill daytime talk shows, but they lose all meaning in the face of real tragedy. Despite the passage of time, David Berkofsky's death could not be more real for his widow Susan. "I am not and would never accuse someone of murder," she says. Nonetheless even today she alternates between zealous anger at police and customs officials she believes performed a lackluster investigation, and resignation in the knowledge that the death of her husband will always be shrouded in ambiguity.

The 51-year-old schoolteacher agonizes over the uncertainty. She talks about how David would never have killed himself -- he was excited about the prospect of retiring, and he loved their two teenage daughters. Then, just as quickly, she says that anyone is capable of anything. "José Marrero-Colon," she adds, "is the only person who knows what happened in that room."

She will insist she's finished talking about it, done with all the lingering questions. But then, in a voice rife with all the pain and anger she denies bearing, she asks why the police reports read the way they do, citing various inconsistencies and an utter absence of any detectable suicidal tendencies in her husband. Of the overall investigation, she says, "I think it was handled poorly. I want to know why."

Susan Berkofsky points to a report filed by Det. Ken Ottley, the lead investigator. It contains Marrero-Colon's initial description of the minutes leading up to the shooting and includes Marrero-Colon's statement that when he stood up to leave the conference room, his gun butt snagged on the arm of his chair. It was at that point, according to the report, that Marrero-Colon says he heard a sound and looked over to see David Berkofsky holding his own weapon. But in the transcript of the official interview with Marrero-Colon, taken at Miami-Dade Police headquarters the afternoon of the shooting, there is no mention of Marrero-Colon's gun butt snagging on the chair arm.

The written narrative from Detective Ottley's first interview with Marrero-Colon (conducted the morning of the shooting) reads: "Marrero-Colon stated that he looked away from David Berkofsky in an attempt to get out of his chair; however, due to the closeness of the arm guards of the chair he was sitting in, the butt of his gun became lodged. He stated as he was attempting to dislodge the gun butt of his weapon from the chair arm guard, he heard a sound that was familiar to him as a weapon being drawn from the holster." That's when Marrero-Colon says he first saw Berkofsky holding a gun.

A transcript of the afternoon interview gives a different account. Police: "When did you think the conversation was coming to a close?" Marrero-Colon: "When I told him, 'Listen, you know I don't have no hard feelings. We just maintain a normal relationship.' At this time, I kind of looked to the side. I don't know why I looked, but I looked to the side and all of a sudden I saw him -- that he got the pistol out."

In both accounts Marrero-Colon says he knocked the gun out of Berkofsky's hand and then tried to wrestle it away from the larger man, who dove to the floor and retrieved it. There was a shot, and Marrero-Colon says he ran out of the conference room and called police. Still the chair-arm discrepancy bothers Susan Berkofsky, as do other inconsistencies she found in the files compiled by police.

Detective Ottley, a Marine reservist, is on duty in Iraq and unavailable for comment. Other detectives from the homicide unit decline to answer questions about the discrepancies or about the Berkofsky investigation generally, saying it is their policy not to speak for the lead investigator on any case.

There are facts, and then there are facts. It is a fact, for instance, that Marrero-Colon passed a gunshot-residue test that morning. But it is also a fact that at least one person who investigated David Berkofsky's death believed Marrero-Colon may have washed his hands just after the shooting. That person was medical examiner Kathleen Enstice, and in the end she was Berkofsky's only advocate outside his circle of family and friends. In April 1999 she filed a report arguing that Berkofsky's death should remain unclassified pending further investigation. Now a medical examiner in Mobile, Alabama, Enstice says she still stands by her report, but declines further comment.

In the strongly worded account, titled "Difference of Opinion in Regard to Classification of Pending Case," Enstice lists a number of reasons for not classifying the shooting a suicide (see sidebar), including the fact that Berkofsky had no history of depression or mental illness and had a shopping list in his pocket because he was planning to do family errands that afternoon; that none of Marrero-Colon's former military colleagues, family, or friends were questioned by police; that Marrero-Colon's version of events "was not questioned by police," and on his attorney's advice he refused to take a polygraph test (a fact mentioned in Enstice's report but nowhere in the police documentation); and lastly that Marrero-Colon initiated the move to the conference room.

In August 1999 Roger Mittleman, Miami-Dade's chief medical examiner at the time of the Berkofsky investigation, wrote a memo overruling Enstice's report. Mittleman includes the following details regarding Berkofsky's gun: "David comes in with gun belt (fully armed). David has only worn his gun belt on 10 occasions for outside jobs but never wore the gun belt in the office."

Mittleman's implication, echoed in some of the reports written by detectives, is that Berkofsky's unusual decision to wear his gun indicated a kind of premeditation that seemed otherwise lacking. In fact Berkofsky's decision to wear his gun is presented in much of the investigatory work as one of the prime indicators that he was a man on the brink of violence. But in the same reports, Berkofsky's wife and Ruth Casal point out that Berkofsky had another reason for wearing his firearm: fear.

From a police report detailing an interview with Casal: "[Berkofsky] advised that he was worried about [Marrero-Colon] because during their meeting, [Marrero-Colon] became upset and began banging with a closed fist on the table. [Berkofsky] feared that [Marrero-Colon] was going to walk across the room and push him. He also feared [Marrero-Colon] since he carried a firearm and advised that if [Marrero-Colon] was to ever push him, he would immediately notify the police."

Even more to the point, Susan Berkofsky told police that she and her husband had a conversation the morning of his death about him wearing his weapon because he was afraid of Marrero-Colon. She stated to both police investigators and the customs officials who first notified her of her husband's death she "knew something terrible was going to happen" that day. She had had a dream the night before the shooting, a dream in which Marrero-Colon "went postal" and started shooting customs inspectors. She and David discussed the dream and he brought up the possibility of wearing his gun to work, though he concluded the conversation by telling her that it was "probably not a good idea." She had no inkling he'd actually taken the gun to work until the police came to her house that night.

In addition to assuming that Berkofsky's decision to wear his gun evidenced a plan to kill himself, Mittleman makes two other claims in the "Motive" section of his memo. The first is "acute mental turmoil related to work and possibly other issues in the decedent's life." Among the issues cited by Mittleman was the computer system at Berkofsky's office, which was causing "extreme stress"; and the fact that at the office "there was a perception that new administrators were micro-managing without know-how."

Are there more ubiquitous problems in the white-collar workplace than cruddy computers and autocratic bosses? "He discussed problems at work but he wasn't coming unglued about it," Susan Berkofsky says. "He wasn't going nuts. We were hanging out on the couch the night before he died, and it was just like a lot of other nights." So while Berkofsky's relatively ordinary gripes about work were portrayed by investigators as the underpinnings of a suicidal mindset, assertions by co-workers that Marrero-Colon had been having personal troubles, including a specific claim by Casal that one of Marrero-Colon's friends had killed himself over the holidays, were never followed up.

The second item listed under "Motive" in the Mittleman memo was this: "José represented a father figure and David had disappointed a 'father.'" This claim is supported only by Marrero-Colon's account of the deadly meeting in the conference room.

Marrero-Colon would not speak with New Times about David Berkofsky, but according to statements he gave to police, he sat in the conference room and listened as Berkofsky launched into a bizarre confessional. Berkofsky said he knew he should have backed up Marrero-Colon with regard to Ruth Casal but he just didn't have the guts, according to Marrero-Colon. His inability to side with Marrero-Colon was a betrayal because he saw him as a father figure. "He wished that he could be like me," Marrero-Colon told police. "He respected my character, my morals, my loyalty, that I was an excellent worker."

Susan Berkofsky says her husband had a difficult childhood, that his father was an emotionally and physically abusive man. But he'd never shown signs of depression, she notes, and he never seemed to be seeking a replacement father figure, especially not one just three years his senior. It's true that Marrero-Colon, a dedicated military man, was the opposite of Berkofsky's Marxist, anti-institutional father, but Susan recounts that her husband never talked about Marrero-Colon as anything other than a casual work acquaintance, and eventually as an annoyance: "He discussed [the conflict with Marrero-Colon] but he wasn't totally unglued about it."

Mittleman, now the chief medical examiner for four Treasure Coast counties, remembers the Berkofsky shooting as "not an easy case." Denying much in the way of specific memory, Mittleman says, "I think we called that a suicide." Reminded of the details, he admits the lack of fingerprints on the gun was disturbing; he also acknowledges that hand-washing can help remove gunshot residue. Mittleman ends a telephone interview on this cryptic note: "Some cases are difficult, and sometimes it is easier to say you just don't know."

Berkofsky's friends scoff at the notion that Marrero-Colon was unable to wrest control of the gun. Berkofsky was bigger (225 pounds to Marrero-Colon's 172) but far from athletic, while Marrero-Colon was fit and well-muscled. "[Berkofsky] looked like a Jewish accountant," says Barbara Evans, a senior inspector with customs who is also chief steward of the employees union. She worked around Berkofsky, saw him intermittently for years, and felt an affinity for a fellow New York Jew. "He was very mild-mannered, not a law-enforcement type at all, whereas Marrero-Colon was built like a fire hydrant."

Scott Bober, a senior customs inspector and Berkofsky's best friend, says, "David was a bigger guy than Marrero-Colon, but he wasn't -- well, in Yiddish we would've called him a schlep. He wasn't a tough guy. He had a hard time at the gun range because he was a little afraid of the gun."

The tussle for the weapon was described by Marrero-Colon to police this way: Berkofsky was at the head of the conference table with Marrero-Colon to his right when Berkofsky drew his gun. Marrero-Colon said he stood up and knocked the gun out of Berkofsky's hand with his right arm. The gun fell to the floor and Berkofsky dropped to the ground. In his first interview with police, Marrero-Colon said he then moved to step on the gun while Berkofsky grabbed for it. Berkofsky then curled himself around the gun in a kneeling position while Marrero-Colon stood behind him, tugging at his shoulders.

In his second interview with police, Marrero-Colon described his struggle with Berkofsky differently. He said Berkofsky flattened his body against the floor with his arms beneath him after gaining control of the gun. Marrero-Colon knelt beside Berkofsky's left hip, pulling on his left arm. Det. Ken Ottley never asked Marrero-Colon about the discrepancy.

Marrero-Colon told Ottley he didn't know where Berkofsky had shot himself, but that he saw blood coming out of his mouth. He says he left the room in a state of shock.

Nelson Andreu, a 21-year veteran of the Miami Police Department's homicide bureau, reviewed for New Times the forensic evidence, witness statements, police reports, and crime-scene photos from the Berkofsky investigation. He is not as critical of the MDPD investigation as medical examiner Kathleen Enstice or Berkofsky's friends and family. "I think basically the police did their job here," Andreu says. "In an investigation like this, there are always things you can criticize after the fact." Although Detective Ottley wasn't available to answer questions about his investigation, Andreu sums up the police perspective regarding inconsistent testimony: "Inconsistency is to be expected. You'll never get two identical stories from the same person, and if you do, then you start to doubt them." Andreu also says that family and friends, even in the case of very obvious suicides, are loath to accept that a loved one has decided to die.

One thing troubled Andreu, though, and it wasn't Enstice's allegations of incomplete police work. "The thing that I don't like is, after [the paramedics] rolled him over, the gun was still in his hand," Andreu says. "Normally the gun falls out because of recoil." But that's not conclusive evidence, according to Andreu: "If it's not a suicide, and I think it could very well be, they'll never know unless the guy confesses."

For years Evans and Bober have wondered what really happened that day. "It got around really fast -- everybody has a radio," Evans recalls. "They said that he committed suicide, and I just said, 'No way.'"

Bober knew Berkofsky for twenty years. They'd worked together at the World Trade Center in New York, and their families were close: "Our kids were born at about the same time, we both came down here from New York. It was, you know, one of those things."

Bober has been skeptical of the investigation into his friend's death since the day it happened. "I think they did a horrible job," he says. "They wrapped the whole thing up in about ten hours. They came to my house that night and told me my friend committed suicide. That's it. They were done."

Berkofsky never told Bober about the problems at work, but Evans was pulled into the dispute before the shooting. "At the time, I was a steward with the union and Ruth Casal came to me with a complaint," she recounts. "Ruth is very smart and good at the computer, but she wasn't the hardest worker and she was pregnant. Marrero-Colon spent a lot of time watching her."

The ex-military man was preoccupied with Casal's performance. According to interviews conducted by Miami-Dade homicide detectives and Marrero-Colon's own words to police the day of the incident, he was a man who felt his standards were generally higher than others. His supervisor, Diane Georges, told police that in November 1998 a union member approached her about Marrero-Colon. According to police reports: "[Georges] was told that Marrero-Colon was coming in to work early and working while not getting paid overtime. She stated that he would monitor other workers, often commenting on whether they would work up to 'Customs Service standards.'"

Three things about Casal set Marrero-Colon off: He believed she wasn't working hard enough, he thought her removal of footwear in the office was unprofessional, and he spotted her putting her stocking feet on the desk, a serious breach of office etiquette.

In early December Casal met with Georges and requested a transfer. She liked the work and she liked all her other co-workers, but Marrero-Colon was making her life miserable. A few hours later, as Georges was trying to figure out what to do about the situation, she received a startling phone call. According to police reports: "Later that day Georges stated that she received a call from Inspector Marrero-Colon questioning her as to the whereabouts of Ruth Casal. After speaking to Inspector Marrero-Colon, Georges then realized that all the reports about his behavior were just confirmed by the phone call."

Everyone around Marrero-Colon, including Berkofsky, told him to cool down and not act like a supervisor, but the messages went unheeded. Even a reprimand from Georges and the threat of harassment claims couldn't convince Marrero-Colon that he was in the wrong.

From the second police interview:

Marrero-Colon: "The union representatives -- they compiled all of that information and they told me that she maybe can press some charges on me as harassment because I was not a supervisor to, I guess, overlook of the workload in the office and quality."

Police: "They said that you weren't a supervisor and you could not oversee her work. Is that what they told you?"

Marrero-Colon: "That's what they mentioned to me, yes."

Police: "How did you respond to that?"

Marrero-Colon: "I respond that I had a high grade of standards and that if I was going to be working in that office, I expected that each and every one of us share the same amount of work."

Marrero-Colon's eventual response was to stop speaking to everyone at the office, except when he had to. Nothing was resolved, and finally, on January 6, Berkofsky asked supervisor Diane Georges to pay a visit to the Free Zone office.

That morning, before Georges arrived, senior inspector Lorraine Kennedy asked Marrero-Colon what he thought of her job performance. Marrero-Colon didn't know it at the time, but Kennedy had formally complained about him to Georges. Kennedy had a history with Marrero-Colon: Shortly after he was assigned to the Miami Free Zone in 1997, he questioned Kennedy's authority to sign certain documents. Kennedy was proven correct but was angry at Marrero-Colon for challenging her. She told police that after a meeting with supervisors, who backed her up and told him he was wrong, Marrero-Colon approached her in the office and "cruelly told her that he knew what was wrong with her, and continued to state, 'I know what you need.'" Kennedy said Marrero-Colon taunted her until she cried, then never bothered her again.

Though her request that Marrero-Colon evaluate her job performance was probably ironic (we'll never know -- customs officials denied New Times access to all employees), he was straightforward in recounting the exchange to police: "I told her I tolerate her way of being at the office. And I also told her that she was a team player. When the job has to get done that she will jump and do it without any hesitation, and that I really appreciate from her, or I like from her, versus the other shortcomings she has that I think should be brought to her attention."

Kennedy told police that Berkofsky and inspector Monte Grodin walked in during Marrero-Colon's discourse on her performance and were aghast. Berkofsky then asked Marrero-Colon to rate his performance, and Marrero-Colon told him he didn't do enough work to justify his salary. Berkofsky became uncharacteristically angry, cursing at Marrero-Colon.

Just then Diane Georges walked into this fracas and sat everyone down. She allowed each inspector a chance to speak, and Berkofsky blew up again, cursing once more at Marrero-Colon. Georges had to tell him to calm down. She also told Marrero-Colon to mind his own business and do his job. But Marrero-Colon wasn't through. He asked to meet privately with Georges, and told her "to take another hard look into the situation." She told him, again, to mind his own business and get back to work. He worked until noon and left for an appointment at the Veterans Administration Hospital, where, he told police, he was regularly treated for ailments related to Gulf War syndrome.

The next morning, January 7, began relatively smoothly. Casal and Marrero-Colon came in early for authorized overtime work and greeted each other without any unpleasantness or name-calling. The first sign of trouble came when Marrero-Colon emerged from the conference room and told Ruth Casal not to get too upset. (Though he noted to police he was in a state of shock, he apparently had the presence of mind to worry about the pregnant Casal.) He instructed her to call 911 and told her David Berkofsky had just shot himself in the conference room. Casal dialed the number but was too overwrought to speak, so Marrero-Colon asked the operator for help.

There is inconsistency in Marrero-Colon's account of the fatal gunshot as well. He told the first officer on the scene that Berkofsky put the gun in his mouth and shot himself, but in his second interview he said he didn't know where Berkofsky had shot himself or whether he was dead. However, he seems to have been certain when he talked to the 911 operator. He said: "There has been a shooting, he is dead, send rescue and police."

Euclid defined a point as "that which has no part." Aside from agitating philosophy undergrads into verbal conniptions, this definition has the specific (and accidental) virtue of summing up moments in time like the one that swallowed David Berkofsky. However detectives take apart and put together the puzzle pieces gleaned from their investigation -- the forensic evidence, the interviews with co-workers, the shocked exclamations of bereaved family -- Susan Berkofsky is left with a completely undefined moment in time. Before that moment her husband was alive; after it he was dead. There is no form or substance to the moment other than Marrero-Colon's statements to investigators, which even if taken at face value only lead to more questions. As a result she has considered every possible series of events, even the most unthinkable: "What if my husband had some kind of psychotic break and José has to carry that around with him?" She has reached only one conclusion. "I don't think my husband went into that room to kill himself," she says. "I don't think José went in there to kill him. But something happened in the room."

No one who worked with David Berkofsky at the Miami Free Zone now works in that office. Marrero-Colon was promoted and sent to Fort Lauderdale, considered a prized assignment by inspectors. "I still see him every once in a while, and I don't know what to think," says Scott Bober. Barbara Evans is less diplomatic: "If I had to partner up with him on the river or something, I would announce to everyone that I have no intention of committing suicide."

Eventually the Department of Labor officially designated David Berkofsky's death "work-related." While no consolation, it ensures Susan Berkofsky a slightly larger monthly check than the pension she'd been receiving. Today she says she's not interested in lawsuits against customs or the police. She just wants to know why no one seemed very interested in figuring out what happened to her husband: "We don't know what happened in that room. Whatever happened, it was a tragedy."

One Doctors Doubts

Below is the complete report prepared by former Miami-Dade medical examiner Kathleen Enstice, titled Difference of Opinion in Regard to Classification of Pending Case.

Rationale for classification: On the morning of January 7, 1999, U.S. Customs agent David Berkofsky was found dead in a conference room in the U.S. Customs Miami Free Zone office. I performed the autopsy, was present at the scene of the shooting, and actively participated in the investigation surrounding the incident.

I do not believe that the shooting can be classified as a suicide and that the manner of death should remain undetermined for the following reasons:

1. Mr. Berkofsky had absolutely no history of depression, suicidal attempts or ideations, or other psychiatric illnesses. He was in a rational state of mind the morning of the shooting as he had taken and recorded his blood glucose level that morning to monitor his diabetes mellitus, and had a grocery list in his pocket of items that he
had planned to purchase on the afternoon of that day.

2. The shooting occurred in a closed room with only one other person present  another U.S. Customs agent, whose version of eventsthat had taken place in the room was not questioned by police. He was not given a polygraph test at the time, and recently has refused to undergo polygraph testing on the advice of his attorney.

3. Mr. Berkofsky and this agent had an ongoing verbal disagreementover work ethics in the office, which culminated in a meeting with the supervisor the evening before the shooting. Mr. Berkofsky was reported to be upset at the meeting, but the other agent was reported to have been disciplined and threatened with a written reprimand in regard to his behavior.

4. On the morning of the shooting, Mr. Berkofsky was reported by an eyewitness to have offered his hand to the other agent in a handshake gesture, and to have said he wanted to put the disagreement behind him. Instead, the other agent asked Mr. Berkofsky to come with him to the conference room where the shooting occurred to
discuss the disagreement. Mr. Berkofsky did not initiate the invitationto the conference room.

5. There were conflicting statements made by investigators as to whether the other agent had entered the bathroom immediately following the shooting, allowing him the opportunity to wash his hands. Although the gunshot residue test for Mr. Berkofsky showed a number of particles present, the test for the other agent was negative. Neither Mr. Berkofsky or the other agent had blood on either hand. Investigators were unable to come to a conclusion as to whether the other agent had or had not gone to the bathroom.

6. The weapon found in Mr. Berkofskys hand at the scene had no fingerprints on it.

7. The other agent had extensive military experience, as he was in the U.S. Army as a Sergeant Major for approximately 25 years, and was deployed on tours of duty in Vietnam during the Vietnam War [ed. note: Marrero-Colon was stationed in Korea, not Vietnam], and Desert Storm and Desert Shield during the Persian Gulf War.

8. The background of the other agent was only superficially investigated in regard to his past military career and personal life. In addition, investigators did not interview any former military colleagues, friends, or the agents former wife.

9. The other agent stated to investigators that he and Mr. Berkofsky struggled for the gun during the incident. By convention, when a struggle for control of a weapon occurs between two individuals, and one of the individuals dies as a result, the manner of death is classified as a homicide.

Note: The other agent has not expressed sympathy to Mr. Berkofskys family in regard to his death.